Editor’s note: In October, we published a series of short commentaries from six experts on Taiwan’s judicial system about a major reform in criminal procedure that will be implemented January 1, 2023. Pursuant to the 2020 Citizen Judges Act (國民法官法 or Guo Min Fa Guan Fa), professional judges will be joined on the bench by non-professional “citizen judges” to hear some criminal cases. Together the professionals and the citizens will decide both guilt or innocence and the sentence. After reading the commentaries, two serving judges reached out to offer their perspectives on the coming reform. Parts 1 and 2 in this series can be found here and here.

‘Totally adopting the adversarial method’

By Yu-Jen Lu 呂煜仁

Implementation of the Citizen Judges Act beginning on January 1, 2023, will have a significant impact on the development of Taiwan’s criminal procedure. The Judicial Yuan, which oversees Taiwan’s court system, has drafted detailed Enforcement Rules of the Citizen Judges Act to address some of the challenges that will arise from having a mixed bench. We can expect to see other impacts emerge in the course of implementation as judges interpret and apply the new law.

The most fundamental change, which may not be obvious at first glance, is the shift away from Taiwan’s traditional inquisitorial trial system. Before 2003, direct investigation by the court played an important role in criminal trials. In that earlier time, the supply of lawyers was insufficient and the policymaker believed that the court’s intervention could play the role of protecting the interests of the defendant and discovering the truth. The criminal procedure reforms of 2003 ended judges’ inquisitorial role and shifted some control of court proceedings from judges to the parties. But judges still received the full case file, with all the evidence, before trial.

Now the Citizen Judges Act can be seen as totally adopting the adversarial method with respect to presentation of evidence. This will have many implications for trial procedure. For example, professional judges (in particular, the presiding judge) will now have to pay attention to whether defense lawyers conduct an effective defense and weigh the implications if they don’t. In the past, the performance of defense lawyers mattered less because judges could directly inform themselves from the case file. According to a past Taiwan Supreme Court opinion (108年度台上字第397號), presiding judges may basically follow the two-prong test set forth by the US Supreme Court in Strickland v. Washington for determining whether an attorney has given the proper amount of care to the defendant.

One of the goals of the citizen judge system is to ensure a balance between truth-finding and due process. …[I]t may reduce the risks of wrongful convictions.

In another example, the presiding judge will need to give careful instructions to the citizen judges before they hear victim impact statements during trial. In US trials, victim impact statements are made during the post-conviction sentencing phase, so they cannot influence the jury’s decision about guilt or innocence. However, in Taiwan testimony relevant to sentencing is heard before guilt or innocence is decided, creating the possibility that citizen judges may be unduly influenced by victim statements. In its Enforcement Rules, the Judicial Yuan has provided guidance for instructing the citizen judges, drawing some inspiration from the instructions the US courts give to juries. In the future, the Judicial Yuan may consider introducing sentencing guidelines to help produce relatively consistent and predictable sentencing results.

One of the goals of the citizen judge system is to ensure a balance between truth-finding and due process. By allowing professional judges and lay judge to try cases together, bringing diverse living experiences into the court, it may reduce the risks of wrongful convictions and increase public confidence in the judiciary. In any case, it is a huge step forward for criminal procedure in Taiwan.

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Yu-Jen Lu 呂煜仁 is a judge in the Criminal Division of the Taiwan Court of Appeal 臺灣高等法院.

A Milestone for Court Transparency

By Chia-Chien Wen 文家倩

Taiwan’s new citizen judge system is a revolutionary innovation that will allow two-way communication between lay people and professional judges. Its purposes are to enhance judicial transparency, reflect the public’s opinions about the law in court decisions, improve public understanding of and confidence in the judiciary, and honor the ideal of popular sovereignty. In order to accommodate a variety of life experiences and values from all walks of life, enrich professional judges’ perspectives, and enhance interactions between lay people and legal professionals, professional judges and citizen judges will work as a team when hearing and deliberating cases as well as delivering judgments.

Jury systems also provide for citizen participation in the criminal justice process. But in jury systems, lay people merely have the power to determine whether a defendant is guilty or not, and have no authority to decide sentences. This means that lay people’s values are not incorporated into sentencing decisions, as they will be in Taiwan’s citizen judge system.

Taiwan’s new system blends features of lay judge and jury systems as practiced in other countries. Its citizen judges will be randomly selected to participate in a single trial, unlike typical lay judge systems in which lay judges are appointed for a certain period of time to adjudicate in multiple cases.

I anticipate that the new system will facilitate mutual understanding between the public and the judiciary, advance the correctness and appropriateness of verdicts … and promote the public’s confidence towards the judiciary.

The criticism has been raised that the citizen judge system is less democratic and impartial than the jury system because professional judges may tend to dominate the citizen judges. However, under Taiwan’s Citizen Judges Act, each case will have six citizen judges, double the number of professional judges, and everyone will have one vote during the final deliberation. In addition, professional judges will be required to let citizen judges convey their perspectives first before speaking in order to prevent citizen judges from being unduly influenced by the professional judges. In some mock trials, it was observed that professional judges were sometimes affected by citizen judges and adopted their viewpoints, showing the possibility of mutual influence. Meanwhile, the presence of professional judges during deliberations may mitigate the risk of some citizen judges dominating over others.

The citizen judge system will be implemented in stages. Starting from January 1, 2023, it will be introduced in criminal cases where the defendant intentionally committed an offense that caused death. Starting from January 1, 2026, its use will expand to cases where the defendant committed an offense punishable by imprisonment of ten years or more.

I anticipate that the new system will facilitate mutual understanding between the public and the judiciary, advance the correctness and appropriateness of verdicts, reduce disagreement between professional judges and lay people, and promote the public’s confidence towards the judiciary, so as to achieve the ideals of impartiality, judicial independence, democracy, and the rule of law.

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Chia-Chien Wen 文家倩 is a judge in the Criminal Department of Taiwan’s Judicial Yuan, where she has worked on preparations to implement the Citizen Judges Act.

Suggested Citation:
“Taiwan’s Citizen Judges Act: Part III,” USALI Perspectives, 3, No. 10, December 15, 2022, https://usali.org/usali-perspectives-blog/taiwans-citizen-judges-act-part-3.

The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.